from the free-speech-is-important dept

A couple months ago, we wrote about a troubling ruling by a magistrate judge in California, ordering the identification of an anonymous internet user, who had spoken out against a cult. As we've noted, many courts have recognized that anonymity is protected by the First Amendment. And, while not universally accepted, many courts have adopted the so-called Dendrite rule for determining when its appropriate to identify an anonymous speaker. This test is a good one, which requires the party seeking to identify an anonymous speaker to both give the speaker sufficient notification to protest being identified, but also to present significant evidence to prove that the speaker broke the law.

Unfortunately, thanks to the RIAA, there's a "competing" ruling when it comes to copyright. Some users had tried to be kept anonymous in a file sharing case, and the court there rejected that attempt, but by using a much lower standard that almost guarantees anonymous speakers would be identified (known as the "Sony Music" standard, since Sony was the lead plaintiff in the case that set the standard). In this case, the plaintiffs pushed to use the much lower standard to identify the anonymous speakers, by claiming that part of the problem was copyright infringement in their blog posts. The magistrate judge agreed. However, thanks to a rapid attempt to get the court to reconsider (via both the anonymous plaintiff and Public Citizen, the ACLU and EFF), district court judge Lucy Koh reversed the ruling by the magistrate judge, and made it clear that even in copyright cases, we shouldn't just throw out the right to be anonymous.

The ruling by Judge Koh is quite good, detailing the right to be anonymous and the First Amendment concerns that must be taken into account, even in copyright cases. The court seems to correctly recognize that the kind of "speech" here is different than just someone downloading a song. Most people would agree that there's no First Amendment right to be anonymous for downloading. But when the "infringement" is done as part of an effort to speak out publicly about an issue, it seems much more reasonable to use the much higher bar to identify the speaker, and that's exactly what the court said. For purely consumptive infringement, perhaps it's reasonable to have a lower barrier to identification. But in cases of expression, the courts should be careful not to just toss out one's right to be anonymous. The court recognized this, pointing out that there are real First Amendment concerns when the use is expressive:

Contrary to Plaintiff's assertions, evidence of copyright infringement does not automatically remove the speech at issue from the scope of the First Amendment. While "the First Amendment does not shield copyright infringement," Harper, 471 U.S. at 555-56, "copyright law contains built-in First Amendment accommodations." Eldred v. Ashcroft, 537 U.S. 186, 219-20 (2003). Perhaps the most important is the doctrine of fair use, which allows the public to use copyrighted works "for purposes such as criticism, comment, news reporting, teaching ... and scholarship." .... In this case, the Court has acknowledged that "Skywalker appears to have published the [protected materials] ... as part of a larger effort to debunk the notion that the Art of Living Foundation and Ravi Shankar possess some 'secret higher knowledge.'" Id. Although the Court need not determine at this stage if Skywalker's conduct is protected by fair use, the circumstances here create a substantial question as to whether the doctrine applies.... The Court therefore finds that even if Skywalker's speech is not "political" or "religious," as he has argued, it at least raises significant constitutional issues.

Judge Koh didn't just stop there. She also went on to discuss the serious potential chilling effects of identifying anonymous speakers using claims of copyright infringement:

Conversely, Sony Music made no mention of the chilling effect of disclosure. Of course, this makes sense, given that the conduct at issue had little First Amendment value. However, because disclosure of Skywalker's identity here could discourage other bloggers from engaging in lawful, critical speech, the Highfields/Perry analysis is more likely than Sony Music to focus the Court on striking the proper balance between competing interests.

It's nice to see at least some judges recognizing that while infringement is not protected speech, there's all sorts of legitimate speech that can be stopped by copyright law, and we shouldn't just ignore the First Amendment when copyright and the First Amendment come into conflict.

Hmm

Most people would agree that there's no First Amendment right to be anonymous for downloading.

I don't know that I agree. Suppose I go to one of those knock-off Techdirt sites that scrape your articles. Once there, I download one of your articles onto my computer. Would you expect a court to turn over my identity to you? [Pretending for the moment that you hadn't, in the past, given implicit license by expressing your lack of concern over such sites].

Let me stretch hyperbole even further. Suppose I'm one of those lawyers who collects IRS bounties for finding those who cheat on taxes. As a honey-trap, I write an e-book entitled '101 ways to not get caught by the IRS' and give a copy to an anti-tax advocate who posts it on a website without my express consent. Do I have a right to obtain the names of every one that downloads it?
I guess my question is: Is there any legal anonymity considerations for the receivers of speech (written word/film/music/art/etc) and not just for the producers/forwarders?

Re: Hmm

No you wouldn't because downloading something even a textbook teaching how to cheat doesn't mean somebody is cheating, it means somebody is curious about those issues and want to learn how it is done but you don't know what their motivations are, just like hackers that go through code with a fine comb trying to find holes in it, most of them don't care about malicious uses, many of them will become security experts, others will become criminals, so no, you should not be able to grab the names of people on flimsy grounds ever.

Re: Hmm

With this case, we recognize that both the First Amendment to the United States Constitution and Article II, Section 10 of the Colorado Constitution protect an individual's fundamental right to purchase books anonymously, free from governmental interference. Law enforcement officials implicate this right when they seek judicial approval of a search warrant authorizing seizure of customer purchase records from an innocent, third-party bookseller. . . .

There are later cases, both in other states and in the federal courts which cite the Colorado Supreme Court's decision in Tattered Cover.

Re:

I don't follow you. Desiring copyright infringement is not the same as inducing copyright infringement.

In the example, the nefarious lawyer may have been inducing people to violate tax laws, but the only thing he did to induce copyright infringement was to create a compelling piece of work. Even though he secretly wanted it to happen, he did not give permission for it to be posted nor did he advertise its availability.

sounds like is should be open or shut case

not everyone wishes to be the one that has to be put the blame on the ones that have choosen to offer the information with the option to push a button and repost someones words. we could all be guilty copyright enforcement at least in someone's eyes...